[Federal Register: July 7, 2003 (Volume 68, Number 129)]
[Rules and Regulations]
[Page 40147-40154]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy03-10]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-128-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are approving, with certain exceptions, a proposed
amendment to the Pennsylvania regulatory program (the ``Pennsylvania
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Pennsylvania proposed to revise its program
regarding rules related to the criteria and procedures for designating
areas as unsuitable for surface mining. Pennsylvania modified these
rules to be consistent with the corresponding Federal regulations and
SMCRA and because under its Regulatory Basics Initiative, Pennsylvania
considered its former regulations to be unclear, unnecessary or more
stringent than the corresponding Federal regulations.
EFFECTIVE DATE: July 7, 2003.
FOR FURTHER INFORMATION CONTACT: George Rieger, Acting Director,
Harrisburg Field Office, telephone: (717) 782-4036, e-mail:
grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Pennsylvania program on July 30, 1982. You
can find background information on the Pennsylvania program, including
the Secretary's findings, the disposition of comments, and conditions
of approval in the July 30, 1982, Federal Register (47 FR 33050). You
can also find later actions concerning Pennsylvania's program and
program amendments at 30 CFR 938.11, 938.12, 938.15 and 938.16.
II. Submission of the Proposed Amendment
By letter dated November 22, 1999, Pennsylvania sent us an
amendment to its program (Administrative Record No. PA 861.03) under
SMCRA (30 U.S.C. 1201 et seq.). Pennsylvania sent the amendment to
include changes made at its own initiative. The provisions of Title 25
of the Pennsylvania Code (Pa. Code) that Pennsylvania proposed to
revise were: 86.1 Definitions; 86.101 Definition of terms; 86.102 Areas
where mining is prohibited or limited; 86.103 Procedures; 86.121 Areas
designated unsuitable for mining; 86.123 Procedures: petitions; 86.124
Initial processing, record keeping and notification requirements;
86.125 Hearing requirements; 86.126 Decision; 86.127 Data base
inventory system requirements; 86.128 Public information; 86.129 Coal
exploration; and 86.130 Areas unsuitable for mining.
We announced receipt of the proposed amendment in the December 27,
1999, Federal Register (64 FR 72297). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy. We did not hold a
public hearing or meeting because no one requested one. The public
comment period ended on January 26, 2000. We received comments from
three Federal agencies and one State agency. The Federal agencies were
the U.S. Department of Labor (Mine Safety and Health Administration),
New Stanton and Wilkes-Barre offices and the U.S. Environmental
Protection Agency
[[Page 40148]]
(EPA), Region III. The State agency was the Pennsylvania Historical and
Museum Commission.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment with the exception as noted below. Any
revisions that we do not specifically discuss below concern
nonsubstantive wording or editorial changes.
A. Minor Revisions to Pennsylvania's Rules
Pennsylvania proposed minor changes to the following previously
approved rules.
Pennsylvania is adding the metric measurement equivalent to the
standard measurements found at sections 86.101(8), (8)(ii), (10), (11),
and (12); 86.103(c) and throughout various subsections of 86.130(b). We
find that adding the metric equivalent will not render these
regulations inconsistent with the Federal regulations.
Pennsylvania is deleting the references to the Bureau of Mining and
Reclamation at sections 86.123(c) and 86.124(d) and replacing that
phrase with the word ``Department'' which is a reference to the
Pennsylvania Department of Environmental Protection (PADEP). These
changes are not inconsistent with the Federal rules because it
clarifies the role of PADEP, which is the State regulatory authority
that implements the coal mining program in Pennsylvania. We are
approving these changes.
B. Revisions to Pennsylvania's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
Pennsylvania proposed revisions to the following rules containing
language that is the same or similar to the corresponding sections of
the Federal regulations.
------------------------------------------------------------------------
Corresponding
Pennsylvania rule citation Federal regulation Topic
------------------------------------------------------------------------
25 Pa. Code 86.1 Definitions 30 CFR 761.5........ Definition used as
``valid existing rights''. part of the
criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 762.5........ Definition used as
Definitions ``fragile part of the
lands''. criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 762.5........ Definition used as
Definitions ``historic part of the
lands''. criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 761.5........ Definition used as
Definitions ``public part of the
building''. criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 761.5........ Definition used as
Definitions ``public park''. part of the
criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 762.5........ Definition used as
Definitions ``renewable part of the
resource lands''. criteria and
procedures for
designating areas
unsuitable for
surface mining.
25 Pa. Code 86.101 30 CFR 761.5........ Definition used as
Definitions ``significant part of the
recreational value, timber, criteria and
economic or other values procedures for
incompatible with surface designating areas
mining operations''. unsuitable for
surface mining.
25 Pa. Code 86.102(1)....... 30 CFR 761.11(a)(1)- Areas where surface
(6). coal mining
operations are
prohibited or
limited.
25 Pa. Code 86.102(3)....... 30 CFR 761.11(c).... Areas where surface
coal mining
operations are
prohibited or
limited.
25 Pa. Code 86.102(9) 30 CFR 761.11(e) and Areas where (c) and
through (9)(iii). 761.15(b), surface (d) mining
coal. operations are
prohibited or
limited.
25 Pa. Code 86.103(d)....... 30 CFR 761.15(b).... Procedures
25 Pa. Code 86.103(e), 30 CFR 761.17(d)(1) Regulatory authority
(e)(2)(i) and (ii). through (d)(1)(iii). obligations at the
time of permit
application review.
25 Pa. Code 86.121(1) 30 CFR 762.13 (a) Areas exempt from
through (3). through (c). designation as
unsuitable for
surface mining
operations.
25 Pa. Code 86.123(c)(5).... 30 CFR 764.13(a).... Right to petition
25 Pa. Code 86.124(c)....... 30 CFR 764.15(c).... Initial processing,
record keeping, and
notification
requirements.
25 Pa. Code 86.125(c)....... 30 CFR 764.17(a).... Burden of
Persuasion.
25 Pa. Code 86.127(b)....... 30 CFR 764.21(b).... Database and
inventory system
requirements.
------------------------------------------------------------------------
Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations.
Pennsylvania is also modifying the following definitions found at
25 Pa. Code 86.101 by deleting some existing language and adding
language: fragile lands, historic lands, public building, public park
and renewable resource lands and deleting existing 86.121(a) and (b).
Since the added language to these definitions or the new sections to
86.121(1) through (3) are substantively identical to the Federal rules,
we find that the deletions do not render the Pennsylvania program
inconsistent with SMCRA or the Federal regulations.
25 Pa. Code 86.1 Definition of Valid Existing Rights. Pennsylvania
is deleting its existing definition of ``Valid Existing Rights'' which
stated:
Valid Existing Rights--Includes the following:
(i) Except for haul roads and activities enumerated in
subparagraph (iii), property rights in existence on August 3, 1977,
that were created by a legally binding
[[Page 40149]]
conveyance, lease, deed, contract or other document which authorizes
the applicant to produce minerals by a surface mining operation. The
person proposing to conduct surface mining operations on the lands
shall hold current State and Federal permits necessary to conduct
the operations on those lands and either have held those permits on
August 3, 1977, or had made by that date a complete application for
the permits, variances and approvals required by the Department.
(ii) For haul roads, the term includes:
(a) A recorded right-of-way, recorded easement, or a permit for
a haul road recorded as of August 3, 1977.
(b) Another road in existence as of August 3, 1977.
(iii) Coal preparation activities, and their associated haul
roads, which were not subject to this chapter and Chapters 87-90
prior to August 25, 1989, were in existence on or before July 6,
1984, and were operating in compliance with applicable laws prior to
that date.
(iv) Interpretation of the terms of the document relied upon to
establish valid existing rights shall be based upon the usage and
custom at the time and place where it came into existence, and upon
a showing by the applicant that the parties to the document actually
contemplated a right to conduct the same underground or surface
mining activities for which the applicant claims a valid existing
right and that the document has been signed by the surface owner.
(v) The term does not include the mere expectation of a right to
conduct surface mining operations or the right to conduct
underground coal mining.
Pennsylvania is proposing the following language as its new
definition: ``Rights which exist under the definition of ``valid
existing rights'' in 30 CFR Section 761.5 (relating to areas unsuitable
for mining).'' Pennsylvania stated in the Pennsylvania Bulletin (Pa.
Bull.) that this ``change will conform the Commonwealth's regulations
to the [Pennsylvania] statutes [52 P.S. 1396.4e, 52 P.S. 30.56a, and 35
P.S. 691.315] and will make it unnecessary for the Commonwealth to
change its definition if the Federal definition is changed.'' 29 Pa.
Bull. 5289, 5292 (October 9, 1999). Accordingly, we find that since
Pennsylvania is effectively incorporating OSM's definition of valid
existing rights and will change its implementation of its definition if
the Federal definition should change, the Pennsylvania definition is no
less effective than the Federal regulation at 30 CFR 761.5.
25 Pa. Code 86.124(a)(2). Pennsylvania amended this section by
adding the sentence, ``A frivolous petition is one in which the
allegations of harm lack serious merit.'' This language is identical to
the language describing a frivolous petition in the Federal regulations
at 30 CFR 764.15(a)(3). Because the language is the same as in the
Federal regulations, we find it no less effective and we are approving
it.
25 Pa. Code 86.129. This section provides the requirements for
conducting coal exploration on areas designated as unsuitable for
surface mining operations. The section will allow coal exploration on
areas designated as unsuitable for surface mining operations if the
following provisions of subsections (b)(1) and (2) are met:
* * * * *
(b) Coal exploration may be conducted on an area designated as
unsuitable for surface mining operations in accordance with this
chapter if the following apply:
(1) The exploration is consistent with the designation.
(2) The exploration will be conducted to preserve and protect
the applicable values and uses of the area under Subchapter E
(relating to coal exploration) and the Department has issued written
approval for the exploration.
* * * * *
In amending this section, Pennsylvania dropped a requirement in
subsection (b)(2) that it would not grant approval for coal exploration
unless the person seeking the approval has described the nature and
extent of the proposed operation, and has described in detail the
measures to be employed to prevent adverse effects. Even though
Pennsylvania dropped this requirement, 25 Pa. Code 86.129 remains no
less effective than the corresponding Federal regulation at 30 CFR
762.15 because of its reference to 25 Pa. Code Subchapter E. Under
Subchapter E, 25 Pa. Code 86.133(f) provides that:
* * * * *
(f) Coal exploration on lands where a petition to declare an
area unsuitable for mining has been received by the Department or on
lands designated unsuitable for mining shall by conducted only after
written approval is granted by the Department. The Department may
prescribe conditions and requirements necessary to preserve the
values sought to be protected in the petition before approving coal
exploration in these areas. The exploration activities shall be
conducted in accordance with Sec. 86.129 (relating to coal
exploration) to insure that the exploration activity does not
interfere with a value for which the area has been designated
unsuitable for mining.
* * * * *
Taken together, the provisions of 25 Pa. Code 86.133(f) and 25 Pa.
Code 86.129 provide the same level of protection as the Federal
regulations at 30 CFR 762.15 regarding coal exploration on lands
unsuitable for surface coal mining. The Federal regulations require
approval under the State's equivalent to the Federal coal exploration
regulations at 30 CFR part 772 to ensure that the exploration does not
interfere with any value for which the area has been designated
unsuitable for surface coal mining. We find it no less effective than
the Federal rule and we are approving the change to this section.
C. Revisions to Pennsylvania's Rules That Are Not the Same as the
Corresponding Provision of the Federal Regulations
25 Pa. Code 86.101 Definitions. The definition of ``surface mining
operations'' has been modified by deleting the following phrase at the
end of the definition: ``* * *and activities involved in or related to
underground coal mining which are conducted on the surface of the land,
produce changes in the land surface, or disturbs the surface, air or
water resources of the area.'' The definition now reads:
The extraction of coal from the earth or from waste or stock
piles or from pits or banks by removing the strata or material which
overlies or is above or between them or otherwise exposing and
retrieving them from the surface, including, but not limited to,
strip and auger mining, dredging, quarrying and leaching and surface
activity connected with surface or underground coal mining,
including, but not limited to, exploration, site preparation, entry,
tunnel, slope, drift, shaft and borehole drilling and construction
and activities related thereto, coal refuse disposal, coal
processing and preparation facilities.
This definition only applies to subchapter D of 25 Pa. Code Chapter
86 and was revised to eliminate the inconsistency between
Pennsylvania's definition and our interpretative rulemaking on
activities applicable to section 522(e) of SMCRA. 29 Pa. Bull. 5289,
5290 (October 9, 1999). Our interpretative rule found at 30 CFR
761.200(a) states ``[s]ubsidence due to underground coal mining is not
included in the definition of surface coal mining operations under
section 701(28) of the Act and 700.5 of this chapter and therefore is
not prohibited in areas protected under section 522(e) of the Act.'' In
the preamble to the interpretative rule we noted that ``we interpret
the definition of ``surface coal mining operations'' at SMCRA section
701(28)(A) and in the analogous portion of the existing rules at 30 CFR
700.5 not to include subsidence, and to include only: (1) Activities on
the surface of lands in connection with a surface coal mine; and (2)
Activities subject to section 516, conducted on the surface of lands in
connection with surface
[[Page 40150]]
operations and surface impacts incident to an underground coal mine,
the products of which enter commerce or the operations of which
directly or indirectly affect interstate commerce.'' (64 FR 70838,
70844 (12/17/99)).
Even though Pennsylvania's revised definition of surface mining
operations removes the inclusion of activities involved in or related
to underground mining it still includes surface activity connected with
underground mining. In the Pennsylvania Bulletin, Pennsylvania states
``[i]n the definition of ``surface mining operations,'' the reference
to activities related to underground coal mining that affect the land
surface has been deleted to clarify that surface mining operations do
not include any surface effects of underground mining resulting from
activities that were conducted beneath the land surface.'' 29 Pa. Bull.
5292. Pennsylvania maintains that its rulemaking ``is consistent with
Federal requirements and that it addresses the difference between the
physical characteristics of mining activities conducted on the surface
as opposed to underground.'' Id. Accordingly, we are approving the
deletion of this language with the understanding that Pennsylvania will
implement the definition of ``surface mining operations'' in the same
manner as contemplated by 30 CFR 761.200(a) and find the deletion not
inconsistent with the Federal regulations.
25 Pa. Code 86.102(11). This section provides that surface mining
operations are not permitted within 100 feet of a cemetery unless there
is valid existing rights. In addition to this existing restriction,
Pennsylvania is adding that cemeteries may be relocated under 9 P.S.
41-52. The Federal counterpart at 30 CFR 761.11(g), also states that
mining cannot occur within 100 feet of a cemetery unless there is valid
existing rights and unless the cemetery is relocated in accordance with
all applicable laws and regulations. Pennsylvania's added language is
consistent with the Federal regulation because it allows for the
relocation of a cemetery and we are approving the change.
25 Pa. Code 86.124(f) Procedures: Hearing requirements. This
section provides that the Department will prepare a recommendation on
each complete petition received under this section and submit it to the
Environmental Quality Board (EQB) within 12 months of receipt of the
complete petition. This section could be viewed as less effective than
the Federal regulations at 30 CFR 764.19(b) which require that, ``a
final written decision shall be issued by the regulatory authority,
including a statement of the reasons, within 60 days of completion of
the public hearing, or, if no public hearing is held, then within 12
months after receipt of the complete petition. However, the enabling
legislation for this section of the Pennsylvania regulations is located
within Pennsylvania's SMCRA, at 52 P.S. section 1396.4e(f) which
states, ``Within ten (10) months after receipt of the petition, the
Department shall hold a public hearing * * * within sixty (60) days
after such hearing, the Department shall issue and furnish the
petitioners and any other party to the hearing, a written decision
regarding the petition and the reasons therefore.'' This language has
been previously determined to be consistent with, and no less effective
than, SMCRA and the Federal regulations. With the Pennsylvania
statutory language consistent with Federal law and regulations, we are
not approving the revision in regulations to the extent that it could
be interpreted as inconsistent with the enabling Pennsylvania statute
and less stringent than SMCRA and the implementing regulations. We
expect that Pennsylvania will continue to process unsuitability
petitions in a manner consistent with State law.
25 Pa. Code 86.125 Procedures: Hearing requirements. Pennsylvania
deleted the requirement at subsection (b) for a verbatim transcript of
the petition hearing and moved the requirement to subsection (d). These
changes are consistent with the Federal rule at 30 CFR 764.17(a) which
requires a record of the petition hearing to be made and preserved
according to State law.
Pennsylvania revised subsection (e) [renumbered from (b) to (e)] to
provide that PADEP will give notice of the hearing by first class mail
and also revised subsection (e)(3) to indicate the notice is to be sent
to persons known to PADEP to have an ownership or other interest in the
area covered by the petition. This is no less effective than the
Federal regulations at 30 CFR 764.17(b)(2) which requires notice of the
hearing to property owners by first class mail. Pennsylvania deleted
the first class mail notification requirement of (e)(4) to the
petitioner and intervenors and added subsection (f), which requires
that notice of the hearing by certified mail shall be given to the
petitioner and intervenors. These changes are no less effective than
the Federal rules.
At subsections (g) and (h), Pennsylvania is changing some of the
hearing responsibilities from the EQB to PADEP. Pennsylvania is also
making editorial changes at subsections (i) and (k). All of these
changes do not render the Pennsylvania regulations inconsistent with
the Federal regulations and we approving the changes.
Subsection (j) was revised to read as follows:
* * * * *
(j) Within 60 days of the close of the public comment period,
the Department will prepare a recommendation to the EQB, including a
statement of the reasons for the recommendation and provide written
notice of its recommendation to the petitioners and intervenors.
* * * * *
For a full discussion of our finding on the time frames for
providing a written notice to petitioners and intervenors, see the
discussion under 25 Pa. Code 86.124(f) above. Section 86.125(j) is not
approved to the same extent that 25 Pa. Code 86.124(f) is not approved.
25 Pa. Code 86.126 Procedures: Decision. Subsections (b) and (b)(1)
were revised and subsection (b)(2) was added. These sections now read:
(b) The EQB will promptly send the decision by certified mail to
the petitioner, intervenors and to the Office of Surface Mining
Reclamation and Enforcement.
(1) If the decision is to designate an area as unsuitable for
surface mining operations, the EQB will deposit and publish its
decision as a regulation in the manner required by the Regulatory
Review Act (71 P. S. sections 745.1--745.15); the act of July 31,
1968 (P. L. 769, No. 240) (45 P. S. sections 1102, 1201--1208 and
1602) known as the Commonwealth Documents Law and 45 Pa.C.S. Part I
(relating to publication and effectiveness of Commonwealth
documents).
(2) If the decision is not to designate an area as unsuitable
for surface mining operations, the EQB will publish its decision in
the Pennsylvania Bulletin within 30 days.
In 25 Pa. Code 86.126(b), Pennsylvania deleted the following
provision: ``A final written decision in the form of a regulation will
be issued by the EQB within 60 days following the public hearing,
including a statement of reasons for the decision.'' We are approving
this deletion because of the finding we made with regard to issuance of
final decisions in 25 Pa. Code 86.124(f) above. As we noted in 25 Pa.
Code 86.124(f), we expect that Pennsylvania will continue to process
unsuitability petitions in a manner consistent with State law.
The changes to these subsections specify who will be sent the
decision, the appropriate documents where EQB's decisions are to be
published and under what authority. The Federal rule at 764.19(b)
requires that the final written decision shall be sent by certified
mail
[[Page 40151]]
to the petitioner, intervenors and by regular mail to all other persons
involved in the proceeding. OSM was concerned that Pennsylvania's
regulation failed to provide notification of the decision by regular
mail to all other persons involved in the proceeding. In a letter dated
February 13, 2002 (Administrative Record No. PA 861.10), Pennsylvania
noted that the Pennsylvania Regulatory Review Act (71 P.S. 745.1 et
seq. required notification to all interested parties. See, 71 P.S.
745.5a. Accordingly, we find that the inclusion of this information
does not make Pennsylvania's program inconsistent with the Federal
regulations at 30 CFR 764.19(b) and we are approving it.
D. Revisions to Pennsylvania's Rules With No Corresponding Federal
Regulations
25 Pa. Code 86.102(4). Subsection (4) was modified by inserting the
phrase, ``the Department of Conservation and Natural Resources and''
before the words, ``the Department.'' The section now reads: ``On lands
within the State park system. Surface mining activities may be
permitted if the Department of Conservation and Natural Resources and
the Department find that significant land and water conservation
benefits will result when remining of previously mined land is
proposed.''
The Department of Conservation and Natural Resources is now
included in the decision on whether mining will be prohibited on
certain State lands. There is no Federal counterpart to this
subsection. We find that this addition does not make this rule
inconsistent with the Federal regulations.
25 Pa. Code 86.102(5) was modified by inserting the, `` * * *
Department of Conservation and Natural Resources and the * * *'' before
the word, ``Department.'' This section now reads:
* * * * *
(5) On lands within State forest picnic areas, State forest
natural areas and State forest wild areas. Surface mining operations
may be permitted on State forestlands other than picnic areas,
natural areas and wild areas, if the Department of Conservation and
Natural Resources and the Department find that one or more of the
following apply:
(i) There will be no significant adverse impact to natural
resources, including timber, water, wildlife, recreational and
aesthetic values.
(ii) Significant land and water conservation benefits will
result when remining of previously mined lands is proposed.
* * * * *
The Department of Conservation and Natural Resources is now
included in the decision on whether mining will be prohibited on
certain State lands. There is no Federal counterpart to this
subsection. We find that this addition does not make this rule
inconsistent with the Federal regulations.
25 Pa. Code 86.130 Areas designated as unsuitable for mining.
Pennsylvania corrected two regulatory references in this section by
adding the description of that reference.
Section 86.130 is the section where Pennsylvania publishes the
results of EQB's decisions designating areas as unsuitable for all or
certain types of surface mining operations. There are no comparable
provisions in the Federal regulations requiring publication of the
designations. Publication will insure that the designations are
available for all interested persons to review. As a result, we find
that this section is not inconsistent with the Federal regulations and
we are approving it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. PA 861.03), but we did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Pennsylvania program
(Administrative Record No. PA 861.04). The Department of Labor, Mine
Safety and Health Administration (MSHA), New Stanton Office, provided
comments by letter dated December 17, 1999 (Administrative Record No.
PA 861.07). The comments included one substantive comment that
requested changing the reference in the Federal regulations to the
definition of ``Valid Existing Rights'' (VER) to actually insert the
language redefining VER.
We have considered this comment and believe that requiring
Pennsylvania to delete the reference to 30 CFR and inserting the
language does not have any effect on the proposed revision to the
Pennsylvania program. Therefore, we will not request Pennsylvania to
change this reference.
By letter dated December 6, 1999, (Administrative Record No. PA
861.05) MSHA's Wilkes-Barre office, stated that nothing conflicted with
existing MSHA regulations.
Environmental Protection Agency (EPA) Comments
Under 30 CFR 732.17(h)(11)(i) we requested comments on the
amendment from EPA (Administrative Record No. PA 861.04). EPA responded
on December 15, 1999, that the amendments appeared to comply with the
Clean Water Act (Administrative Record No. PA 861.06).
The Pennsylvania Historical and Museum Commission (PHMC)
PHMC submitted comments by letter dated February 26, 1999
(Administrative Record No. PA 861.01) with a follow up letter dated
December 7, 1999 (Administrative Record No. PA 861.09) resubmitting
their earlier comments. The comments submitted include:
1. The proposed change in the definition of a completed application
at 25 Pa. Code 86.1 weakens Pennsylvania's requirements by only
requiring an applicant for a permit application to complete forms
addressing each requirement of the application instead of
``demonstrating compliance with applicable statutes and regulations.''
We have determined that the comment addresses an issue that is not
in this program amendment. Since it is outside the scope of the
amendment, we are not required to address this comment.
2. The revision to the definition of valid existing rights in 25
Pa. Code 86.1 deletes nearly all descriptions of what are valid rights
for people and agencies and replaces them with a line indicating that
valid existing rights are rights which exist under the definition of
valid existing rights in 30 CFR 761.5. PHMC wants to retain the old
definition, or repeat verbatim, the Federal definition so the rights of
the people or agencies are clear.
PHMC is correct in noting the change. However, OSM's standard for
review of amendments to State program regulations are whether the
regulations are no less effective than the corresponding Federal
regulations in meeting the requirements of SMCRA (see 30 CFR 730.5).
Pennsylvania's inclusion of the reference to the Federal regulations in
the definition of valid existing rights makes it no less effective than
the Federal regulations because it now includes all rights as protected
by Federal regulation.
3. The change to the definition of fragile lands in 25 Pa. Code
86.101 adds the stipulation that the damage to these properties be
significant. This is inconsistent with Federal Section 106 statutes,
which applies when there is an impact to cultural resources. Also the
deletion of language that provides protection to buffer areas
surrounding fragile lands is unacceptable.
As with Pennsylvania's change to the definition of valid existing
rights, the
[[Page 40152]]
change in definition to fragile lands is based on the Federal
definition of fragile lands at 30 CFR 762.5. The Federal definition
also describes areas that could be significantly damaged by surface
coal mining operations. We have found that Pennsylvania's definition of
fragile lands is no less effective than the Federal definition. As for
the deletion of the buffer zone provisions of Pennsylvania's
definition, there is no such similar provision in the Federal
regulations. As a result, we cannot require Pennsylvania to retain the
buffer zone protections because its deletion will not make
Pennsylvania's program less effective than Federal regulations.
4. The revision to the definition of historic lands should include
additional examples of what constitutes historic lands to include
``historic or cultural districts and paleontological sites'' at 25 Pa.
Code 86.101.
We have considered this comment and find that the definition is
substantively identical to, and no less effective than, the Federal
definition of ``historic lands'' found at 30 CFR 762.5.
5. The proposed revision to the definition of surface mining
operation at 25 Pa. Code 86.101 deletes references to surface impacts
by underground mining, which is not consistent with SMCRA or the
Federal regulations.
As stated in our findings, we promulgated a rule on December 17,
1999, at 30 CFR 761.200(a), concerning our interpretation of the
definition of surface coal mining operations. Please refer to that
finding for further discussion of the interpretative rule and its
application. As previously discussed, we are approving the deletion of
the language with the understanding that Pennsylvania will implement
the definition of ``surface mining operations'' in the same manner as
contemplated by 30 CFR 761.200(a).
6. The deletion of the words ``on or eligible for inclusion'' to
the National Register of Historic Places at 25 Pa. Code 86.102(3), so
that only sites included on the National Register are protected from
mining, conflicts with Section 106 of the National Historic
Preservation Act and 36 CFR 800.2.
The Federal rule at 30 CFR 761.11(c) does not prohibit mining that
may affect places eligible for listing on the National Register of
Historic Places. The Federal rule only prohibits mining that will
affect places listed on the National Register of Historic Places.
Therefore, we find the proposed revision consistent with Federal law.
7. Revising the regulations at 25 Pa. Code 86.103(e) that require
the Department to notify Federal, State, or Local Agencies with
jurisdiction over a publicly owned park or place on the National
Register of Historic Places when it is determined that the adverse
effects will adversely affect the park or place.
The revision by Pennsylvania is to delete ``may'' and insert
``will'' with respect to adversely affect. The Federal regulation at 30
CFR 761.11(d) does not require procedures for joint approval when the
publicly owned park or the historic place may be adversely affected by
coal mining operations. The Federal rules only require such approval
when it will affect such properties. Accordingly, as we have determined
in the findings, the proposed revision is no less effective than 30 CFR
761.11(d).
The PHMC also wants the old language of ``historic'' retained in
this section. However, the deletion of the word ``historic'' is
consistent with the Federal language at 30 CFR 761.11(d). Additionally,
Pennsylvania has retained the reference to the National Register of
Historic Places.
8. The changes to 25 Pa. Code 86.121 regarding criteria and
procedures for designating areas unsuitable for mining does not
adequately protect cultural resources because of its emphasis from
areas designated as unsuitable for surface mining operations to areas
exempt from designation as unsuitable for mining.
Pennsylvania's changes to 25 Pa. Code 86.121 make that section mean
the same as the corresponding Federal regulation at 30 CFR 762.13.
Because the meaning of that section is the same as the Federal
regulation, we have found it to be no less effective than the Federal
regulation and we approved it. We did not find that Pennsylvania's
change provides less protection to cultural resources.
9. The revisions at 25 Pa. 86.123(c)(5) that give the right to
petition only to people who can demonstrate an ``injury in fact'' was
objected to because the PHMC believes such a test makes it so that only
individuals who own property can petition to have land designated as
unsuitable for mining.
Pennsylvania's ``injury in fact'' test is substantively identical
to the Federal ``injury in fact'' test at 30 CFR 764.13(a). In its
submission, Pennsylvania indicated that the purpose for adding this
language is to make the section consistent with the Federal rules. We
have determined that the proposed revision is one of the criteria for
the right to petition for lands unsuitable. Therefore, we are finding
that this proposed change is no less effective than the Federal
regulations.
10. The PHMC objects to all the changes where the EQB was replaced
by PADEP. PHMC objects to making PADEP responsible for hearing lands
unsuitable petitions as would be required in 25 Pa. Code 86.124(c) and
86.125(a) instead of EQB as formerly required.
The Federal regulations at 30 CFR 764.17 require the regulatory
authority to conduct hearings. In Pennsylvania, the regulatory
authority is PADEP. As a result, Pennsylvania's change does not make it
less effective than the corresponding Federal regulations.
11. The PHMC objects to coal exploration within areas designated
unsuitable for mining at 25 Pa. Code 86.129(b) and believes it would
directly impact cultural resources. The Federal regulations at 30 CFR
762.15 allow coal exploration operations within areas designated
unsuitable for mining if such operations are conducted in accordance
with the regulatory program. Pennsylvania's regulations at 25 Pa. Code
86.129 and 86.133 require that the exploration will be conducted to
preserve and protect the applicable values and uses of the area.
Therefore, there will be no impact to such cultural resources. We find
that the proposed revisions are no less effective than 30 CFR 762.15.
V. OSM's Decision
Based on the above findings, we approve, with the exceptions noted
below, the amendment Pennsylvania sent us on November 22, 1999, that
was clarified by letter dated February 13, 2002.
We do not approve 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j)
to the extent that these sections would allow Pennsylvania more time to
complete a final written decision on a lands unsuitable for surface
mining activities petition than is allowed by the provisions of the
Federal regulations at 30 CFR 764.19(b).
To implement this decision, we are amending the Federal regulations
at 30 CFR part 938, which codify decisions concerning the Pennsylvania
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
Effect of OSM's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly,
[[Page 40153]]
30 CFR 732.17(a) requires that any change of an approved State program
be submitted to OSM for review as a program amendment. The Federal
regulations at 30 CFR 732.17(g) prohibit any changes to approved State
programs that are not approved by OSM. In the oversight of the
Pennsylvania program, we will recognize only the statutes, regulations,
and other materials we have approved, together with any consistent
implementing policies, directives, and other materials. We will require
Pennsylvania to enforce only approved provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
In this rule, the State is adopting valid existing rights standards
that are similar to the standards in the Federal definition at 30 CFR
761.5. Therefore, these provisions have the same takings implications
as the Federal valid existing rights rule. The takings implications
assessment for the Federal valid existing rights rule appears in Part
XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27,
December 17, 1999. The provisions in the rule based on other
counterpart Federal regulations do not have takings implications. This
determination is based on the analysis performed for the counterpart
Federal regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR Sec. Sec. 730.11, 732.15, and
732.17(h)(10), decisions on proposed State regulatory programs and
program amendments submitted by the States must be based solely on a
determination of whether the submittal is consistent with SMCRA and its
implementing Federal regulations and whether the other requirements of
30 CFR Parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
Pennsylvania does not regulate any Native Tribal lands.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon data and
assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the
Pennsylvania submittal, which is the subject of this rule, is based
upon counterpart Federal regulations for which an analysis was prepared
and a determination made that the Federal regulation was not considered
a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the
Pennsylvania submittal, which is the subject of this rule, is based
upon counterpart Federal regulations for which an analysis was prepared
and a determination made that the Federal regulation did not impose an
unfunded mandate.
[[Page 40154]]
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 9, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 938 is amended as
set forth below:
PART 938--PENNSYLVANIA
0
1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 938.12 is amended by adding paragraph (b) as follows:
Sec. 938.12 [Amended]
* * * * *
(b) We are not approving the following portions of provisions of
the proposed program amendment that Pennsylvania submitted on November
22, 1999:
(1) Sections 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) are
not approved to the extent that these sections would allow Pennsylvania
more time to complete a final written decision on a lands unsuitable
for surface mining activities petition than is allowed by the
provisions of the Federal regulations at 30 CFR 764.19(b).
0
3. Section 938.15 is amended in the table by adding a new entry in
chronological order by ``DATE OF FINAL PUBLICATION'' to read as
follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission
date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
November 22, 1999................ July 7, 2003..................... 25 Pa. Code 86.1 definition of ``valid
existing rights;'' 86.101 definitions of
``fragile lands,'' ``historic lands,''
``public building,'' ``public park,''
``renewable resource lands,''
``significant recreational value, timber,
economic or other values incompatible
with surface mining operations,'' and
``surface mining operations;'' 86.102(1),
(3) through (5), and (7) through (12);
86.103(c), (d), and (e); 86.121,
86.123(c) and (c)(5); 86.124(a), (c), (d)
and (f); 86.125; 86.126; 86.127; 86.128;
86.129; and 86.130(b).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 03-17078 Filed 7-3-03; 8:45 am]
BILLING CODE 4310-05-P